General Terms of Business and Delivery - 4packaging GmbH
The following terms of business are the basis for all our offers, deliveries and performances. They are regarded as having been approved as from the acceptance of order by us for the current and all future business.
Other business conditions are accepted only, if and when they comply with our general terms of business, or in a particular case, if they are explicitly accepted by us in written form as a basis for the respective contract or performance.
Our offers are generally non-binding. In case of doubt a contract becomes effective only with and, in any case, according to the contents of our written order confirmation, should one be given.
Communicated budget prices are no offers; they become the basis for a contract only if a written order confirmation exists. We abide by our offer prices for a period of maximum four months before ordering.
Verbal and subsidiary agreements as well as alterations of contract take effect only through written confirmation by us.
An offer including all its attachments must not be made available to third parties without our consent.
3. Prices and Terms of Payment
Our prices apply strictly net without discount or any other allowance in EUR “ex works”, excluding packaging, freight and insurance, unless there are other agreements. VAT will be accounted separately in the statutory amount on the day of delivery. Grant of cash discount requires a special written agreement between the parties. Our prices apply exclusively for correctly constructed and manufactured parts which are suitable for processing. Should additional work become necessary, we will invoice the surcharges as stated in the order confirmation resp. as agreed with the customer in advance. Under the same conditions we are also entitled to invoice surcharges for small quantities.
Should essential cost factors for pricing (materials, operating materials, salaries and wages etc.) change significantly between contract formation and the contractually agreed delivery date, we are entitled to claim an agreement for new prices from the customer that vary from our offer prices. If an agreement cannot be achieved, we are entitled to withdraw from the contract.
Payment has to be made within ten days of receipt of invoice without any deductions or cash discounts, unless there are other agreements. In case of default in payment we will charge default interest in the amount of the interest on credits as put to our account by the bank, however, at least 3.5% above the discount rate of the German Central Bank, plus any other default damage. Deliveries to new customers or customers who have not generated revenue for more than one year are only made on advanced payment, cash on delivery or payment on collection. This provision applies to the first two invoices.
The right to offset or withhold against our claims is only available to the customer, if his counterclaim is uncontested or a legally enforceable title exists.
Unless otherwise agreed, the delivery deadline starts with the receipt of the order confirmation but no earlier than with the delivery of the parts which have to be processed, provided all essential contractual details have been agreed on at these points of time.
Unpredictable, inevitable or other serious events on our, on supplier’s or subcontractor’s side, which result in delays in delivery or performance or even in the impossibility of performance, and for which we are not responsible, extend the agreed delivery times by the duration of the obstruction and entitle both parties to withdraw from the contract. Such obstacles could be a strike, a lock-out, an interruption of operations, a lack of energy or material, personnel shortages, administrative orders or intervention, acts of God, missing means of transport, etc.
Should the customer - after receiving a written reminder - be in default regarding his provision or cooperation obligations, we are entitled to either withdraw from contract or to claim damages because of non-performance, setting a written grace period of 14 days.
Partial deliveries are not permissible.
Deliveries are "ex works" excluding packaging, unless there are any other agreements.
Any risk for items to be processed for the customer falls on the customer as soon as they leave our company, latest, however, as soon as they are handed over to the forwarder or the carrier.
Should the customer ask us to pick up the goods that have to be processed, he bears the risk of transportation. It’s up to the customer to insure such risks. The same applies if the finished goods are shipped by us at the request of the customer.
The above mentioned terms also apply if we have warranted carriage-paid delivery.
When the goods are ready for delivery and shipment or receipt are delayed for reasons we are not responsible for, the risk is passed to the customer as from the receipt of the notification of the readiness for shipment.
It is left to our discretion to make the decision regarding the delivery and its means, under exclusion of our liability and without warranty of any kind for the cheapest and fastest shipment and the utilization of the means of transport. At the same time, customer interests are considered appropriately. Should we act as forwarders, the General German Freight Forwarding Terms and Conditions apply additionally.
4.11. Goods which have been reported ready for delivery, have to be called forward by the customer immediately, at the latest, however, after the expiry of a period of ten days after the announcement. Should this not happen, we are entitled to store the goods at the customer’s expense and risk at our own discretion and to invoice them as "delivered ex works".
Should the shipment or delivery of the goods be delayed at the customer’s request or instigation, warehouse charges amounting to 1% of the invoice amount can be claimed for every month started, beginning one month after the notification of the readiness for shipment. Warehouse charges are limited to a maximum of 5% of the invoice amount, unless we can prove higher storage cost.
We are not liable for any waiting time, even if pick-up and delivery dates have been approved, as long as the exceeding of the delivery date is still adequate.
Insurance against transport damage is solely made by order and at the expense of the customer. The liability of the insurance of specie in transit is principally limited to DHL’s liability amount for a standard package in force at any one time. Higher amounts insured for a consignment have to be ordered in written form by the customer when placing the order, at the latest, however, before the return consignment.
In case of the return of finished goods for reasons we are not responsible for, the customer bears the risk up to the receipt of the goods at our company.
Finished goods are packed for return only to the extent that those parts are packed which have been processed, repackaging has been requested and the packing material can be reused. Should additional packaging be requested, it will be invoiced separately and not taken back.
We assume liability for our performances only with the provisions set out below and exclusively towards the customer as first recipient. The assignment of warranty claims to third parties is excluded.
We guarantee professional processing of the surface and gravure in terms of material and workmanship according to state-of-the-art technology and the valid or generally accepted drafts of DIN regulations. With galvanic and chemical processes and due to differences in the quality of the raw materials variations from any sample underlying the order are sometimes inevitable.
Inadequately processed parts will be professionally reworked free of charge if we are accountable for the reasons.
The warranty period shall be 6 months. The goods delivered are to be examined for faults immediately. Any identified defects have to be notified in writing to 4packaging GmbH immediately, at the latest, however, within 8 days after the receipt of the goods. The obligation of the customer regarding examination also exists where reference samples have been provided. The same applies to within the previously stated period after the discovery of a defect, if this defect cannot be identified immediately. Should defects be identified during use, the use has to be stopped until we have convinced ourselves of the condition of the parts and have made our decision.
If a complaint fails to be made in the formally correct manner and/or in good time, the goods shall be deemed accepted between business people in accordance with the HGB.
Items to be processed have to be delivered with delivery note resp. with written statement of the exact amount and designation. Details on weight are non-binding for us, even if they are important for the customer. We will only replace any missing parts if the delivery note has been signed by us and the risk for the missing parts has been transferred to us.
If we fail to meet our warranty liability to perform rework following a written request by the customer or if two attempts of reworking do not lead to the contractually stipulated result, the customer is entitled to demand a reduction in payment, to withdraw from the contract or, in case of absence of contractually assured features, to claim compensation for non-performance.
Further claims of the customer except for wilful intent and gross negligence shall be excluded. Is the customer a businessman, these entitlements are further restricted to replacement of damage to the object of delivery itself and the value of the order in height. They will lapse within the same period as other warranty claims. The liability of the contractor in accordance with the Product Liability Law shall remain unaffected. Contractual penalties are not recognized.
A defect in a partial delivery does not entitle the customer to a cancellation of the contract, except if the defect in the partial delivery is so significant that the reception of further partial deliveries is not acceptable.
The warranty is only valid for demands under normal, operational and climatic conditions. If the goods are intended for special conditions and we have not been informed of this, a warranty is excluded. Should the parts we have processed be mechanically or chemically damaged during transport, any existing warranty shall no longer be applicable. The warranty also expires if the subject of the contract has been modified or rework has been attempted by a third party.
6. Security Rights
We are entitled to a statutory contractor’s lien in the objects handed over to us. Irrespective of this the customer shall grant us a contractual lien in the objects that have been handed over. This lien shall serve as security for all undisputed and legally established claims from the business relationship. Where processed parts are delivered to the customer before full payment, then it is hereby agreed with the customer in advance, that he shall assign to us the ownership in these parts to the value of our claim as security for our claims, and that the handing-over of possession is replaced by the fact that the buyer takes care of the goods for us. The same applies with regard to the entitlement of the customer to objects handed over to us, which have been delivered to the customer by a third party under reservation of title. We are entitled to induce the omission of the reservation of title. Claims to the retransfer of ownership against any third party, to whom he had previously handed over the objects, which he transferred to us, as security, are herewith surrendered to us. We herewith accept the assignment.
The customer may neither pawn nor transfer objects as security for which we have a lien or which are pledged property. He is, however, entitled to resell or process the goods in the course of ordinary business, unless he had effectively assigned his claims against his contracting party to a third party in advance. A possible processing of the goods into a new chattel by the customer happens on our behalf and with effect for us, without arising obligations. We herewith concede a co-ownership of the new object to the customer corresponding to the relation of the value of the new object to the value of our performance. The customer has to store the new object with all the concern of a tradesman and free of charge.
In the case of resale of the goods processed by us and transferred as pledged property to us or of the new product manufactured from these goods, the customer is obliged to inform his purchasers of our ownership.
In order to secure the fulfilment of all our claims the customer hereby assigns to us all claims, including all future claims, resulting from resale or further processing of the pledged property, including all subsidiary rights, in the amount of the value of the goods and with priority over all other claims. We herewith accept the assignment.
At our request the customer has to provide proof of each such claim and to disclose the assignment to third parties with the demand to pay directly to us to the amount of our claims. We also have the right to inform subsequent purchasers ourselves at any time of the assignment and to collect any claims. However, we will not make use of this right and will not collect these claims as long as the customer meets his payment obligations duly.
The customer is obliged to immediately notify us of any enforcement measures of a third party into the security rights.
The customer is obliged to adequately insure the pledged property against fire and theft and upon demand, transfer the claims against the insurer and the injuring party to us.
Upon the request of the customer the securities accruing to us in accordance with the above provisions will be released insofar, as their value exceeds the claims by more than 20%.
Should a third party enforce their rights on the pledged property, the customer is bound to immediately provide us with all necessary documents and to pay all costs for intervention charged to us.
All our claims, including those from previous contracts, even in the case of extension to payment, will become due immediately, if the customer gets into arrears in the fulfilment of other obligations to us, if he stops his payments, is insolvent, if settlement or bankruptcy proceedings are opened against his assets or such proceedings are refused due to lack of sufficient assets or if circumstances become known which are of a nature to considerably reduce the customer’s credit worthiness. In such a case we are entitled to execute outstanding deliveries only against advanced payment or by way of security or, following an unsuccessful reminder with extension, to demand damages for non-performance resp. to withdraw from the contract.
7. Place of Performance and Venue
For both parties the place of performance and venue for all claims arising from the contract is our place of business.
The law of the Federal Republic of Germany shall apply; the application of foreign law and the UN Convention on Contracts for the International Sale of Goods shall be excluded. The German version of a text of the contract shall be applicable.
8. Severability Clause
Should any of the agreed conditions of these General Terms of Sales become invalid, ineffective or impracticable for any reason, the validity of the remaining provisions and of the underlying contract remains unaffected. In such a case the parties are obliged to replace the defaulted term with an agreement that best complies with the one that has been dropped.